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To kill or not to kill

White House seems to be asking quietly

By Noah Feldman, Bloomberg News

Posted:
02/16/2014 06:36:00 AM EST

Every time you think the war on terror can't get any weirder, it does.

In the latest manifestation, White House officials are leaking to the news media that they are considering whether to use drone strikes to kill an unnamed American in Pakistan. This behavior is bizarre as a matter of national security: If a terrorist really poses an imminent threat, how exactly does the administration have time to test the political waters before taking him out? But it is the inevitable result of a more fundamental, long-term problem with the United States's use of drone strikes.

The Obama administration has kept secret the legal justification for such strikes on Americans, as well as the internal procedures to be followed in making the decision. The secrecy shrouds the drone program in a basic sense of illegitimacy. No wonder the administration feels it can't just kill our enemies, but needs to send up trial balloons first: The whole program is operating under a bad legal conscience.

The backdrop to the current mess is the fundamental problem of secret legal opinions. In 2013, the Justice Department released a "white paper" -- not, it must be noted, a legal term -- vaguely explaining why it believed that it is constitutional and lawful to kill an American abroad if he or she is a "senior operational leader of al-Qaida."

The white paper offered a kind of sketch or "framework" based on a secret Office of Legal Counsel memorandum that presumably provides the actual legal arguments on which the government relies in making such a momentous decision.

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But the memorandum itself has never been declassified: We have no idea what it really says, or whether the white paper accurately summarized its reasoning.

The white paper argued most prominently that a citizen's due-process rights are not violated when the drone kills him, as long as a "high-level" government official deems him an imminent threat, capture is infeasible, and the strike satisfies the international laws of war. This argument may sound reasonable enough on the surface, but looked at more closely, it's full of holes. "Imminent threat" is defined incredibly broadly, and on the assumption that some parts of al-Qaida "continually" pose an imminent threat. The word "imminence" has an ordinary constitutional meaning -- something is imminent if it is likely to happen soon. The white paper turns that meaning on its head. It says, for example, that if the target has in the past planned attacks and has not resigned from al-Qaida, the requirement of imminence is satisfied without evidence of, well, imminence.

As for compliance with international law, the white paper essentially asks us to ignore the fact that nearly all reputable experts on international law outside the U.S. -- and not a few inside -- consider drone strikes already to be a violation of the law of war principles. A glance at the numbers of civilians killed by such strikes as collateral damage raises at least the possibility that the technique as practiced may be unlawful.

Far worse, the white paper eviscerates the traditional idea of due process. Since Magna Carta in 1215, due process has meant, at a minimum, an opportunity to be heard by a neutral decision-maker. The white paper claims that due process is satisfied without any opportunity to be heard -- and without, you guessed it, a neutral decision-maker. Instead, some unspecified, secret internal process takes place in the higher reaches of the executive branch. The president is ultimately both judge and executioner.

If the Justice Department under George W. Bush had released a legal memorandum declaring that constitutional due process could be satisfied for an American through a secret, internal executive-branch process, it is hard to imagine that the community of constitutional-law scholars would not have risen in revolt. (Civil libertarians, on the left and right, have been lonely voices of dissent in the debate.)

Perhaps the full memorandum addresses these questions -- especially the question of due process -- better than the white paper does. But if so, we have no way of knowing it, because the memorandum remains secret.

There is no national-security reason to justify the suppression of legal reasoning whose "framework" has already been provided. Nor has the Obama administration suggested such a justification. We are left to conclude that the supposed threat to national security is actually that Americans would be upset by the legal justifications offered. In a democracy, there can be no worse reason for keeping a secret.

All this helps explain why the Obama administration apparently feels it cannot kill an American citizen without first taking the political temperature in the U.S. When a government program has the odor of illegality, no one wants to use it unless the use will not be heavily criticized. That's no way to run national security -- and it's no way to run a constitutional democracy, either.

Noah Feldman, a law professor at Harvard University and the author of "Cool War: The Future of Global Competition," is a Bloomberg View columnist. Follow him on Twitter at@NoahRFeldman.